2018 Annual Florida Bar Convention: Elder Law Update

Episode Notes

Transcript

The Florida Bar Podcast

2018 Annual Florida Bar Convention: Elder Law Update

06/15/2018

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Karla Eckhardt: Hello and welcome to The Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network. This is Karla Eckhardt recording from the 2018 Annual Florida Bar Convention in Orlando, Florida. Thank you for joining us today.

Joining me today I have Peggy Hoyt and Alex Douglas and we are going to talk about Elder Law, but before we do that, why don’t you guys tell us a little bit about yourselves?

Peggy Hoyt: Thank you very much, Karla. This is Peggy and gosh, I have a lot to say, I guess. We have been talking all day, but I am the Incoming Chair of the Animal Law section of The Florida Bar. I am a member of the Executive Council of the Solo & Small Firm section of The Florida Bar, former Past Chair, and I have been practicing in the area of Wills, Trusts and Estates and Elder Law since I graduated from Stetson in 1994.

Karla Eckhardt: You’ve got experience. That’s good. How about you, Alex?

Alex Douglas: I went to Washington University undergraduate, Florida State for Law Schools —

Karla Eckhardt: Go no — okay.

Alex Douglas: Absolutely, been practicing I think 28 years now and I am also active in The Florida Bar Reptile Committee on the Probate Trust Litigation Subcommittee as well as Probate Procedure.

Karla Eckhardt: Nice. So, I’d like to hear that you guys are very involved with the Bar, so that’s great. It’s also very appropriate that we are going to be talking about Elder Law today because for our listeners who don’t know, tomorrow, the 15th is going to be World Elder Abuse Awareness Day. So, it’s a perfect segue into today’s topic. So, let’s get started.

Peggy Hoyt: That is a perfect segue and I think what I will mention to start out with is that Elder Abuse doesn’t necessarily mean that we are holding our seniors down and hitting them. It can take all kinds of forms; including exploitation, financial, physical of course, spiritual, mental, emotional, exploitation, and abuse come in all forms.

Karla Eckhardt: Right. We know it’s been a topic of interest in Florida in particular lately, so what’s any new legislation, any cases that we have seen that have really sort of moved elder law into the forefront of people’s minds?

Peggy Hoyt: I think what’s happening a lot on the Elder Law forefront, I don’t know that there’s any specific new legislation with regard to Elder Abuse. Alex may be able to comment on that. I think there is a greater awareness though and I would encourage anybody who might be aware of Elder Abuse to call the Elder Abuse hotline.

Karla Eckhardt: And would you happen to know that hotline, is it something we can add to the podcast later?

Alex Douglas: We can, we can get that number.

Peggy Hoyt: I think it’s 1800 Elder Abuse.

Karla Eckhardt: Beautiful.

Alex Douglas: It could very well be.

Karla Eckhardt: We will fix that, if that’s not it.

Alex Douglas: And there is, as I understand, pending legislation that will add some injunctive relief under the Elder Abuse statute and a lot of — Peggy talked about the fact that elder abuse doesn’t have to be just hurting someone physically. Oftentimes it is financial though and from my perspective as a fiduciary litigator, you see a lot of family members who are abusing their parents or their loved ones by financially taking advantage of them, and obviously when that happens there’s a lot of ways you can go about to remedy that, both under the elder abuse statute as well as the guardianship statute, and just common law actions for Breach of Fiduciary Duty.

It is a situation that is growing unfortunately as our elders age and especially here in Florida with all the retirees that we have we are getting an explosion of cases unfortunately with regard to persons who have abused a power of attorney. A lot of elders don’t understand how important and powerful a durable power of attorney is and how very important it is if you are signing a Power of Attorney to make sure you carefully select who your attorney in fact will be. That person will be able to do everything that you can do, including taking money out of your bank account, and unfortunately, a lot of folks have given their Power of Attorney to the wrong family member or to the wrong friend, and when that happens you have to intervene either through a guardianship proceeding, which both Peggy and I handle.

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I handle the ones that are contested or you can pursue under the Power of Attorney statute, certain remedies under that statute allows you to collect damages, attorney’s fees and the such, but the important thing is to report the elder abuse and if you are able to take legal action very quickly, the longer you let situations kind of work out as some people think they will, the more chance that the person who is abusing the elder will be able to dissipate their assets. And that’s really where sometimes you may have a legal remedy but practically the money is gone.

Karla Eckhardt: Right.

Peggy Hoyt: That’s where they are saying you can’t get blood from a stone comes from.

Karla Eckhardt: Right.

Peggy Hoyt: So, once the money is gone it can be devastating to other family members that may be relying on that money.

I am thinking of a case that Alex and I are involved in where the money was dissipated during the mother’s lifetime and at her death the remainder was intended for an adult disabled child.

Karla Eckhardt: That is just terrible. So, what can people do, because this is an area of law that everyone is going to encounter at some point in their life? It’s not like, not everyone is going to encounter criminal law in their lives, and not everyone is going to commit a crime, but Elder Law is relevant to everyone.

Alex Douglas: It absolutely is, and Karla, it is a great question. Now, let me tell you, from a litigation perspective the best thing you can do is go see an Elder Law lawyer and do your planning, because if you plan correctly with your estate planning documents, your Power of Attorney, your living will, your Pre-Need Guardian selection, you can certainly help the court if it has to go to a judicial proceeding, help determine what your real desires are.

And so many people, for instance, find themselves — family members find themselves having to go to court to establish a guardianship for a parent because that parent did not take the time and did not see in advance far enough that they may become incapacitated, and when you are incapacitated, it’s too late. You don’t have capacity to sign legal documents, but if they had gone to see an Estate Planner attorney, Elder Law attorney and done basic estate planning including a Power of Attorney and a Pre-Need Guardian and a living will which of course tells your care provider what your wishes are if you are in a medical situation, all those things are so critically important to helping protect yourself and your finances.

And if they are not done then that’s where people have to go to the unnecessary expense of filing for a guardianship. A guardianship is a very expensive proceeding that in most cases can be a 100% avoidable if you just go do your estate planning.

Peggy Hoyt: Well, and we like to say that a guardianship is the worst kind of lawsuit because it’s one that your family files against you. You get to pay for it, and ultimately, you lose, and in fact the whole family may lose because relationships get destroyed sometimes in the process.

And, I think one of the things that maybe elders are not aware of is when they sign a Power of Attorney, that Power of Attorney is effective the day it’s signed. There doesn’t have to be some disability event waiting out there in the future, and so, really important as Alex said earlier, make sure that you choose your people carefully and make sure that you keep that plan updated because the people may change over time in terms of who you trust and who’s available and your best interest overall.

Karla Eckhardt: Right, so we just talked about planning ahead of time, what can someone, an elder person who is already in a bad situation do, what recourse do they have?

Peggy Hoyt: So, if a person is already incapacitated and this happens many times because family members tend to just kind of watch this person decline over time, thinking that they are going to get better or the circumstances are going to change, if that decline has happened and the person is now incapacitated and they have no planning our only option is guardianship.

Karla Eckhardt: Okay.

Alex Douglas: And a guardianship of course is where you have to first determine whether the person is incapacitated. Here is a three-person medical panel that’s appointed by the court, it’s usually a doctor or social worker or psychiatrist or a nurse that examines the person, actually goes to their house and interviews them and examines them and does report to the court.

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And if you have two out of three reports that come back that they are incapacitated then the court can find that the person does have incapacity, the court then has to determine in what areas they’re incapacitated. Are they fully incapacitated? If so, that’s called a plenary guardianship. If they’re only partially incapacitated, then the court has to specify, can they enter into contracts? Can they handle their finances? Those specific items that they are unable to do. That is delegated to a guardian.

So, the next stage is, if the person is incapacitated, the court will appoint a guardian. Oftentimes that’s where the real fight is. Within families that are not getting along, it’s brother who wants to be guardian over sister, or family, other family members and those kind of cases can get very, very contentious. Sadly, oftentimes it’s not so much over who can better care for mom or dad but over who is going to control mom and dad’s money, and a lot of times after testimony is heard the court can see through what is really going on, and not in every case is that a prevalent theme but in many cases often the parties are really trying to gain control over finances, and that also goes to another issue about having a revocable trust because in a guardianship the guardianship court only has jurisdiction over assets that are in the ward’s name. So, in the incapacitated person’s name if you have assets or in a trust with a trustee those assets are not part of the guardianship. So, that again is a — as Peggy can, I’m sure, state having a estate planning in place including with a trust is another way you can ensure that if you become incapacitated you can have a successor trustee step in and manage your money and not have to be so dependent upon a court having to appoint a guardian to do that.

Peggy Hoyt: That’s a very good point, Alex, because I think traditionally people have thought more about Revocable Living Trusts in terms of avoid probate save taxes.

Well, now that we have an estate tax exemption that’s $11,200,000 x2 if we’re married, the taxes issue is not as important. People still think that avoiding probate somehow means avoiding lawyers. Now, you don’t understand that it doesn’t mean that we get to avoid the process. So, I think the real benefit in having a Revocable Living Trust is the fact that it does living trusts is the fact that it does provide for a definition of incapacity. Who’s going to decide that you’re mentally disabled?

And what I like about a Trust is that, that first determination can be my own. I can decide that I’m not capable of managing my own financial affairs and I can resign as trustee in favor of my personally selected successor trustees. If I’m not capable of making that decision independently, I can appoint one or more persons that I trust. I’d like to call it a Disability Panel that can be empowered to make a determination of disability when I don’t necessarily agree with them because I’ve now lost my capacity to make that determination.

Once my Panel meets, they make a disability determination. The effect is to empower my successor trustee and then that trustee must look to the instructions in the Trust about my future care. So, I can say, take care of me, take care of Carla, take care of my husband. Take care of my next-door neighbor. Oh, and definitely take care of my pets. That’s another place that we can be very specific about how we want those that are closest to us to be cared for in the event of our incapacity.

And the pet issue, I didn’t mean to get off on a tangent, but the pet issue is actually one that guardianships don’t deal well with, because in Florida we still view our pets as personal property. There’s no specific statute within the guardianship statutes that addresses what happens to pets or how they should be cared for. I think a lot of guardians don’t necessarily expect that that might become part of their responsibility.

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Alex Douglas: So, Karla, going back to your question what can someone who is in advanced age right now can do, if they still have their capacity, then the best thing they can do is to see an Estate Planner or Elder Law lawyer because Peggy is absolutely right. You want to be the person selecting who steps in when you become incapacitated and not the court, and that’s the whole beautiful thing about advance planning.

And folks may say, I don’t want to spend a couple thousand dollars or whatever it may be to do some estate planning. Well, I can tell you and I can assure you that if you don’t do that you are going to be spending a whole lot more in litigation later on if you have a family that may not get along. Peggy and I have seen that happen time-and-time again where folks just wait too long and become incapacitated and then either are the subject of a contested guardianship or after their death contested estate.

Peggy Hoyt: And, cost of litigation are not always financial, I mean, they can be emotional, they can be spiritual, they can certainly suck up your time, your energy, your ability to spend time with your own family, have your own life. For some people it’s just a dark cloud that lives over their head, can destroy family relationships.

I think, Alex and I would both agree that our overall goal would be to promote family harmony and by doing prior proper planning, we can do that.

HYPERLINK “https://legaltalknetwork.com/hosts/karla-eckardt/” Karla Eckardt: Great. Well, thank you guys. Before we close out I do have one more question if our listeners would like to follow up with you about the topics we discussed today how could they reach you?

Peggy Hoyt: I can be reached at  HYPERLINK “mailto:[email protected]” [email protected] or through my website at  HYPERLINK “http://www.hoytbryan.com” hoytbryan.com.

Alex Douglas: And I can be reached at  HYPERLINK “mailto:[email protected]” [email protected] or our website at  HYPERLINK “http://www.shuffieldlowman.com” shuffieldlowman.com.

HYPERLINK “https://legaltalknetwork.com/hosts/karla-eckardt/” Karla Eckardt: Well, this has been another edition of The Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network.

I want to thank our guests for joining us today. It’s been very informative. If you’ve liked what you heard today please find and rate us in Apple Podcasts. I’m Karla Eckhart. Until next time, thank you for listening.

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